Owens v. Stirling, C/A No. 0:16-cv-2512-TLW-PJG

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtPaige J. Gossett UNITED STATES MAGISTRATE JUDGE
PartiesFreddie Owens, Petitioner, v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections, Joseph McFadden, Warden, Lieber Correctional Institution, Respondents.
Docket NumberC/A No. 0:16-cv-2512-TLW-PJG
Decision Date12 January 2018

Freddie Owens, Petitioner,
v.
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections,
Joseph McFadden, Warden, Lieber Correctional Institution, Respondents.

C/A No. 0:16-cv-2512-TLW-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

January 12, 2018


REPORT AND RECOMMENDATION

DEATH PENALTY HABEAS CORPUS PETITION

Petitioner Freddie Owens, a death-sentenced state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondents' second motion for summary judgment (ECF Nos. 147 & 148) and the petitioner's motion for a hearing (ECF No. 164), and the petitioner's motion to stay (ECF No. 186). All motions have been fully briefed. (See ECF Nos. 166, 174, 175, 184, 189, 190.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondents' motion for summary judgment should be granted and Owens's Petition and motion for hearing should be denied. Additionally, the court denies Owens's motion for an evidentiary hearing (ECF No. 164) and recommends denying Owens's motion to stay (ECF No. 186).

BACKGROUND

Owens was convicted of murdering a convenience store clerk, Irene Graves, during an armed robbery. After the guilty verdict but before the sentencing phase began, Owens killed his cell mate at the Greenville County Detention Center, Christopher Lee. The jury sentenced Owens to death for

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Graves's murder. Following an appeal in which the South Carolina Supreme Court vacated his death sentence, a circuit court judge again sentenced him to death. The state supreme court again reversed. After a third sentencing hearing, a jury again imposed the death penalty. The South Carolina Supreme Court affirmed. Following two rounds of proceedings seeking post-conviction relief, Owens now seeks a writ of habeas corpus from this court.

PROCEDURAL HISTORY

Owens was indicted in October 1998 in Greenville County for armed robbery, murder and possession of a firearm during the commission of a violent crime, and criminal conspiracy (1998-GS-23-5218, -5220, -5223). (ROA11 at 1-6, ECF No. 14-6 at 7-12.) The State issued a notice of intent to seek the death penalty in March 1998. (ROA1 at 7, ECF No. 14-6 at 13.) Owens was represented by John M. Rollins, Esquire, and Karl B. Allen, Esquire, in a jury trial that began on February 8, 1998. (ROA1 at 498-99, ECF No. 14-7 at 7-8.) On February 15, 1998, the jury found Owens guilty as charged. (ROA1 at 3001-06, ECF No. 15-2 at 47-52.) Following a sentencing proceeding, the jury recommended a sentence of death as to the murder conviction, finding the aggravating circumstance that the murder was committed while in the commission of a robbery while armed with a deadly weapon. (ROA1 at 3320, ECF No. 15-2 at 366.) The circuit court sentenced Owens to death for murder, thirty years' imprisonment for armed robbery, five years' imprisonment for possession of a weapon during a violent crime, and five years' imprisonment for criminal

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conspiracy, the armed robbery sentence to be served consecutively to the death sentence, and the others to be served concurrently. (ROA1 at 3329-31, ECF No. 15-2 at 375-77.)

First Direct Appeal

Owens timely appealed and was represented by trial counsel and Katherine Carruth Link, Assistant Appellate Defender with the South Carolina Office of Appellate Defense, who filed a final brief on Owens's behalf raising various issues relating to the trial court's jurisdiction, evidentiary rulings, the denial of a new trial, and sentencing. (Final Br. of Appellant at i, ECF No. 14-1 at 2.)

On September 4, 2001, the South Carolina Supreme Court affirmed Owens's convictions, vacated his sentence for possession of a firearm during the commission of a violent crime, reversed his death sentence, and remanded the case for a new sentencing proceeding. State v. Owens, 552 S.E.2d 745 (S.C. 2001); (ECF No. 14-4).

Second Sentencing Proceeding and Appeal

On remand Owens was represented by Alex Kinlaw, Jr., Esquire, and Steven Sumner, Esquire. (ROA2 at 88, ECF No. 15-7 at 91.) In his second sentencing proceeding, Owens elected a bench trial rather than a jury trial. (ROA2 at 31-36, ECF No. 15-7 at 34-39; ROA2 at 77-86, ECF No. 15-7 at 80-89; ROA2 at 95, ECF No. 15-7 at 98.) Following the sentencing proceeding, Owens was sentenced to death. (ROA2 at 521-23, ECF No. 15-8 at 25-27.) In an opinion issued on December 20, 2004, the South Carolina Supreme Court again reversed Owens's death sentence, and the case was remanded for a third sentencing proceeding. State v. Owens, 607 S.E.2d 78 (S.C. 2004); (ECF No. 15-5).

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Third Sentencing Proceeding

In his third sentencing proceeding, which began on September 28, 2006, Owens was represented by E.P. "Bill" Godfrey, Esquire, and Ken Gibson, Esquire.2 (App. at 1, ECF No. 16-1 at 4.) Following the presentation of evidence, a jury sentenced Owens to death for murder, finding the aggravating circumstances that the murder was committed while in the commission of a robbery while armed with a deadly weapon and that the murder was committed while in the commission of a larceny with the use of a deadly weapon. (App. at 1608-11, ECF No. 16-4 at 193-96.)

Third Direct Appeal

In a timely filed appeal to the South Carolina Supreme Court, Owens was represented by Joseph L. Savitz, III, Chief Appellate Defender, and Lanelle C. Durant, Appellate Defender, both with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. (ECF No. 16-4.) In a final brief filed on Owens's behalf, appellate counsel raised the following issues:

1. The trial judge abused his discretion when he summarily disqualified a potential juror, Sonya Ables (Juror Number 1), solely because she "went to [her] pastor and talked to him about [the death penalty]," as he incorrectly believed "there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law."

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2. The trial judge committed reversible error by admitting Owens' prison disciplinary records, as they violated the rule against hearsay, as well as the Sixth and Fourteenth Amendments.

3. The trial judge committed reversible error by allowing the Solicitor to argue in closing that the conditions of life imprisonment in general justified a death sentence for Owens, as this argument injected an arbitrary factor into the jury sentencing considerations in violation of S.C. Code Section 16-3-25(C)(1).

(App. at 1689, ECF No. 16-4 at 222.) On July 14, 2008, the South Carolina Supreme Court issued an opinion affirming Owens's death sentence. (App. at 1780-84, ECF No. 16-4 at 313-17.) Appellate counsel submitted a petition for rehearing, (App. at 1785-86, ECF No. 16-4 at 318-19), which was denied on August 8, 2008 (App. at 1787, ECF No. 16-4 at 320).

Petition for Writ of Certiorari in the United States Supreme Court

On November 5, 2008, Owens, represented by John H. Blume, Esquire, and Keir M. Weyble, Esquire, filed a petition for writ of certiorari in the United States Supreme Court, presenting the following question:

Whether the South Carolina Supreme Court's holding that Petitioner's Confrontation Clause challenge to the admission of testimonial hearsay contained in prison disciplinary records was procedurally barred is an adequate and independent state ground given that A) trial counsel objected and challenged the trustworthiness and reliability of the evidence, which are the precise values embodied the Confrontation Clause; and B) the trial court clearly understood that counsel's objection raised a federal constitutional issue.

(App. at 1789, ECF No. 16-4 at 322.) The Court denied the petition on January 21, 2009. (App. at 1863, ECF No. 16-4 at 396.)

First Post-Conviction Relief Action

Owens filed a pro se application for post-conviction relief ("PCR") on January 29, 2009. (Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1864-68, ECF No. 16-4 at 397-401.) Subsequently, Weyble and Emily C. Paavola, Esquire, were appointed to represent Owens in the

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PCR proceeding, and they filed an amended petition on his behalf. (Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1869-74, ECF No. 16-4 at 402-07). The State filed a return on April 2, 2009. (App. at 1885-1945, ECF No. 16-5 at 9-69.) Through Weyble and Paavola, Owens filed a second amended application for post-conviction relief on June 15, 2010, raising the following claims:

10(a): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution during jury selection at his 2006 capital re-sentencing proceeding.

11(a): Supporting Facts: Trial counsel's performance during jury selection was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:

1) Counsel failed to object to statements by the solicitor, and similar instructions by the trial court, that the State may only seek death where aggravating circumstances are present, which improperly suggested to potential jurors that the aggravating circumstances had already been found.

2) Counsel failed to object when the trial judge erred by disqualifying a potential juror, Sonya Ables (Juror Number 1), solely because she "went to [her] pastor and talked to him about [the death penalty]," as the trial judge incorrectly believed "there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law."

10(b): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the
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